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Posts by Carolyn E. Moser Esq.


Pennsylvania Enacts Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act

Any medical practitioner, or lawyer practicing in a medically-related field, understands the difficulty of medically managing a patient who lacks the capacity to make important decisions for him or herself.  In such situations, it becomes necessary to rely on decision makers such as powers of attorney or family members.  However, there is the potential that competing individuals will vocalize opposing wishes, all claimed to be in the best interest of the incapacitated person.

Where there is no interested person to make the decisions, or the decisions of competing interested parties can not be reconciled, it may become necessary to seek Court appointment of a legal guardian.  Such instances are further complicated when the incapacitated person has ties outside of the Commonwealth, because each state has its own distinct system of protecting adults who need the assistance of a legal guardian.

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Gavel Stethescope

“Maternal Forces of Nature” Defense Held Scientifically Invalid

An Appellate Panel in New York has rejected a defense in obstetrical medical malpractice cases as scientifically invalid.  In Muhammad v. Fitzpatrick, the Appellate Division, Fourth Department, upheld an Erie County Supreme Court decision that precluded the defense from presenting evidence that a newborn’s injuries were caused by the “maternal forces of labor” during the birthing process rather than by any negligent acts on the part of the defendant healthcare providers.  The Panel’s decision is notable not only because it is contrary to all other known appellate rulings on this issue, but also because — in less than a page — the New York appellate court rejected what had previously been an unquestioned defense in obstetrical medical negligence cases.

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Gap Between Malpractice Risk for Inpatient and Outpatient Care Closes

Physicians and medical malpractice attorneys alike probably speculate that practitioners of the various surgical specialties carry the highest risk of being named in a malpractice lawsuit.  After all, adverse events in those fields have the potential to be catastrophic and tend to be associated with large payouts for plaintiffs.  In actuality, they may be wrong, according to recent trends.

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PA Supreme Court Rules MCARE Must Cover Primary Insurance Deficit

On April 28, 2011 the Pennsylvania Supreme Court unanimously upheld the Commonwealth Court’s decision in Heim v. Medical Care Availability and Reduction of Error Fund (MCARE), and clarified the payment obligations of MCARE.  The Court ruled that MCARE must pay any part of a damage award that is not covered by a doctor’s private medical malpractice insurance.  The MCARE Fund is the public insurance fund for medical malpractice coverage.

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CMS Launches Physician Compare Website

As of December 30, 2010, the Centers for Medicare and Medicaid Services (CMS) enhanced their older “Healthcare Provider Directory” tool, which helped beneficiaries research and compare physicians enrolled in the program, by introducing an expanded and updated “Physician Compare” to the public.  The driving force behind this new database is the Affordable Care Act, the 2010 health reform law that has the primary goal of promoting healthcare transparency.  See 42 U.S.C.A. § 18120.

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CT Usage in Emergency Departments Increased Dramatically

A recent study based on the National Hospital Ambulatory Medical Care Survey, which is administered by the Centers for Disease Control and Prevention, identified a nationwide trend associated with the use of Computed Tomography (CT) in Emergency Departments (ED).  According to the results of national surveys, it is estimated that approximately 70 million CT exams are performed each year.  Between 1995 and 2007, the number of visits to the ED that included a CT examination increased from 2.7 million to 16. 2 million, which constitutes a compound annual growth rate of 16%, or an astounding six-fold, or 600%, increase during the 13 year study period.  Not only was this increase markedly greater than the 10.4% rate reported in the most commonly cited source, but also, perhaps more surprisingly, the study indicates that there was no evidence that the increased use of CT in EDs was dwindling.  With the authors unable to predict if, when, or at what level, the overall use of CT in EDs will taper, the question becomes: are CT use rates moving toward appropriate rates or have they moved beyond them?  Only time will tell.

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